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[2014] ZALCJHB 156
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Passenger Rail Authority Of South Africa v Commission For Conciliation, Mediation And Arbitration Of South Africa and Others (JR2399/12) [2014] ZALCJHB 156; (2014) 35 ILJ 1609 (LC) (9 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: JR 2399/12
In
the matter between:
PASSENGER
RAIL AUTHORITY OF SOUTH AFRICA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
First
Respondent
AND
ARBITRATION OF SOUTH AFRICA
TIMOTHY
BOYCE
N.O.
Second
Respondent
NSIZWA
CROMET
MOLEPO
Third
Respondent
Date
of Hearing: 25 April 2014
Date
of Judgment: 09 May 2014
Summary:
Application for leave to appeal-costs order against a non-party;
whether a non-party must be given a hearing before a cost
order is
made against such a party; no invariable requirement that a non-party
must be given a hearing
JUDGMENT
MOOKI
AJ
[1] This judgement
concerns the application for leave to appeal an order by the court
that was handed down on 17 January 2014. The
notice of the
application for leave to appeal was served on 4 February 2014. The
submissions in support of the application were
served on 19 March
2014. The submissions opposing the application were served on 3 April
2014. The application was heard on 25
April 2014.
[2] The applicant relies
on three grounds. First, that the court ought to not have made an
order that Mr Lucky Montana, the applicant’s
chief executive
officer, pay the costs in his personal capacity. Second, that the
court ought to have found that Mr Molepo, the
third respondent,
occupied the post of adviser to Mr Montana when Mr Molepo’s
employment contract was terminated. Third,
that the court ought to
have found that the Commissioner erred in not concluding that Mr
Molepo had repudiated his contract of
employment and that the
applicant accepted the repudiation.
[3] The applicant sought
leave to introduce a further affidavit. Mr Molepo, represented by Mr
Mthombeni, objected on the basis that
the affidavit was sought to be
placed before the court in an irregular manner. I allowed the
affidavit.
[4] Mr Naidoo SC
(together with Mr Mmusi) appeared for the applicant. Mr Naidoo
submitted to the court that the affidavit dealt
with aspects that
bear on the enforcement application in which Mr Molepo sought to
enforce the arbitration award made in his favour
pending the
determination of the applicant’s review application. The
enforcement application is not before this court. The
affidavit is
irrelevant to the extent that it deals with issues that bear on that
application. Mr Naidoo did not refer to any allegation
in the
affidavit and how such allegations bear on the application for leave
to appeal.
[5] Mr Naidoo focused the
substance of his submissions on the first ground. There are two
aspects to the submissions. First, that
the court erred in granting
the cost order because Mr Montana was not a party to the litigation.
Second, that the court should
first have given Mr Montana a hearing
before making a cost order against him.
[6]
I am not
persuaded by Mr Naidoo’s submissions. The fact that Mr Montana
was not a party to the litigation is not a bar to
the court granting
a cost order against him. The correct legal position is, for example,
as set out in
EP
Property Projects (Pty) Ltd v Registrar of Deeds, Cape Town, and
Another, and Four Related Applications
.
[1]
The following passages are relevant:
[69] The rule in our law
is that all costs, unless expressly otherwise enacted,
are in the discretion of the judge,
which discretion must be
judicially exercised (Kruger Bros & Wasserman v Ruskin
1918 AD 63
at 69, per Innes CJ). […]
[70] […] A costs
order is not often made against a person who is personally not a
party to the litigation before a court
considering a costs order, but
in certain circumstances our courts, in the exercise of the
discretion regarding costs, do order
a non-party to pay costs
de boniis propriis. These include the attorneys of a party, the
director of a company, liquidators,
administrators, municipal
councillors and officials, and employees of government departments
and public officials.
[7] The law as stated in
EP Property Projects (Pty) Ltd
is consonant with the stance in
other common law jurisdictions that vest the determination of costs
in the discretion of a court.
Such discretion takes into account,
among others, that:
Although costs orders
against non-parties are to be regarded as "exceptional",
exceptional in this context means no more
than outside the ordinary
run of cases where parties pursue or defend claims for their own
benefit and at their own expense. The
ultimate question in any such
"exceptional" case is whether in all the circumstances it
is just to make the order. It
must be recognised that this is
inevitably to some extent a fact-specific jurisdiction and that there
will often be a number of
different considerations in play, some
militating in favour of an order, some against.
[2]
[8] It seems to me, with
reference to the expression “exceptional case” in the
Dymocks Franchise Systems (NSW) Pty Ltd
decision, that such
reference is not intended to constitute a non-party as meriting
special consideration when a court determines
the issue of costs.
[9]
The Privy
Council, in
Dymocks
Franchise Systems (NSW) Pty Ltd,
advised that the non-party was liable for costs in part because the
non-party took the decision to fund and thereby promote the
particular appeals.
[3]
The fact
that the decision entailed a non-party who funded the litigation does
not detract from the principle that the determination
of costs is in
the discretion of a court; including whether such costs are to be
made against a non-party. There is nothing in
principle that suggests
that a court can exercise its discretion and award costs against a
non-party who funds litigation, but
cannot exercise such discretion
in respect of a non-party involved in some other aspects to the
litigation.
[10]
Mr Naidoo
referred me to the decision in
Gauteng
Gambling Board and Another v MEC for Economic Development, Gauteng
Provincial Government,
[4]
pointing out that the Supreme Court of Appeal did not make an order
against the MEC in that decision because such an order was
not asked
for.
[11] The immediate
response is that the court in
Gauteng Gambling Board
exercised
its discretion having regard to the circumstances in that case. I do
not, in addition, understand the court in
Gauteng Gambling Board
to be pronouncing a new legal principle pertaining to the law on
costs.
[12] The lower courts are
and should be mindful of statements by superior courts such as the
Supreme Court of Appeal. I do
not, however, consider this court
to be bound by the line in paragraph 54 of the
Gauteng Gambling
Board
decision; at least on two bases. First, a determination on
the issue of costs is in the discretion of the court seized with a
particular
matter. The particular court has regard to the various
circumstances that are peculiar to the matter before that court and
whether
such circumstances should bear on the issue of costs. Second,
I am not aware of any authority (and the court in
Gauteng Gambling
Board
did not refer to any) to the effect that a cost order
against a public official is competent only where such an order has
been
expressly asked for.
[13] Mr Naidoo also
submitted that the court erred by not giving Mr Montana a hearing. I
enquired from Mr Naidoo whether it is invariable
that a court will
not make an adverse cost order without first giving a person a
hearing. He submitted that such a person must
first be given a
hearing, illustrating his submission with reference instances where a
court makes an order that the attorney bear
the costs.
[14]
I disagree
with the submission by Mr Naidoo that it is invariable that a court
will not make a cost order against an attorney without
first calling
on such an attorney to explain why such a cost order should not be
made. The law reports are replete with instances
where a court made a
cost order against attorneys without first calling on such an
attorney to be heard.
[5]
[15] The second ground of
appeal is essentially that the court should have found that the
Commissioner erred in rejecting the contention
that Mr Molepo did not
agree to become the special advisor to Mr Montana. There is no merit
to this ground. The applicant has not
laid any proper basis to
impeach the Commissioner’s finding that Mr Molepo did not agree
to become Mr Montana’s special
advisor.
[16] The third ground of
appeal is essentially that the court should have found that the
Commissioner erred in his finding that
Mr Molepo did not repudiate
his contract of employment. There is equally no merit to this ground.
[17] The second and third
grounds of appeal essentially concern the same subject matter. The
two grounds are, in any event, inherently
self-destructive. On the
one hand, the applicant says that Mr Molepo should have been found to
have agreed to become Mr Montana’s
special advisor; whilst, on
the other hand, the applicant says that Mr Molepo repudiated his
contract of employment and that the
applicant accepted such
repudiation.
[18] The test to be
applied in this application is whether there are reasonable prospects
of success on appeal.
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law. The question
is whether a
reasonable person, adopting a different line of reasoning –
usually by attaching more weight to factors ignored
or downplayed in
the judgment, or by attaching less weight to factors accentuated in
the judgment, could come to a different conclusion.
That there is a
possibility of success, the fact that the case is arguable, or that
it is not a hopeless case, do not constitute
grounds for granting
leave to appeal. (See also
S
v Smith
2012 (1) SACR 567
(SCA) para 7).
[6]
[19] I am not satisfied,
in the premises, that the applicant has reasonable prospects of
success in its intended appeal.
[20] I make the following
order
20.1.
The application for leave to appeal is dismissed.
20.2.
There is no order as to costs.
__________________
MOOKI O
Acting Judge of the
Labour Court of South Africa
Appearances:
For the applicant:
Mr M Naidoo SC (with Mr L Mmusi)
Instructed by:
Makhubela Attorneys
For the third respondent:
Mr Mthombeni
Instructed by:
Shongwe Attorneys
[1]
2014 (1) SA 141 (WCC)
[2]
Dymocks
Franchise Systems (NSW) Pty Ltd v Todd and Others
[2004] UKPC 39
;
[2005] 4 All ER 195
(PC), para 25
[3]
Dymocks
Franchise Systems (NSW) Pty Ltd,
para
30
[4]
[2013] 3 All SA 370 (SCA)
[5]
See, for example, Tasima (Pty) Ltd v Department of Transport and
Others
2013 (4) SA 134
(GNP); at paras 36, 40, 43, and 74
[6]
Ngobeni v S (741/13)
[2014] ZASCA 59
(2 May 2014),
para
15,